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Khetra Mohan Chatterjee and ors. Vs. Mohim Chandra Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.595
AppellantKhetra Mohan Chatterjee and ors.
RespondentMohim Chandra Das
Cases ReferredNoban Nusya v. Dhon Mahomed
Excerpt:
execution of decree - rent decree--instalment decree in rent suit, whether rent decree--instalments running over more than three years from date of decree--non-payment of last instalment--execution--limitation--bengal tenancy act (viii of 1885), section 184, schedule iii, article 6--quilibet potest renunciare jure pro se introducto, where applicable. - .....the expiration of three years from its date, impliedly agreed to waive the special rule of three years' limitation and submit to a simple money decree and the ordinary rule of limitation. this at once raises the question whether the parties to a suit can contract themselves out of the law of limitation and extend the period prescribed thereby. i am of opinion that the reply to this question must be in the negative.4. the principle (on which the appellants rely) that any one may renounce the benefit of a right introduced in his own favour, quilibet potest renunciare jure pro se introducto, is essentially restricted to legal provisions intended for the benefit of individuals, and does not apply to rules of law based, as are statutes of limitation, on public policy and general.....
Judgment:

1. In the case out of which this appeal arises, the plaintiffs, the sole landlords, sued the defendant for rent and obtained, on the 26th April 1907, a consent-decree for the amount claimed (Rs. 315) payable in five instalments, the last to be forthcoming in January 1911. On the 24th February 1909, the defendants paid the exact amount of the first three instalments together, and on the 6th April 1911 the plaintiffs applied for execution in respect of the balance. The application, which was thus made more than three years after the date of the decree, has been dismissed by both the Courts below as time-barred by Article 6, as amended, of the third Schedule to the Bengal Tenancy Act, 1885.

2. The plaintiffs have now preferred this second appeal, and the first point taken on their behalf is that the Article quoted has no application. In my view, however, this is not so. Read with Section 184, the Article provides, in these words, that 'every application for the execution of a decree made under this Act in a suit between landlord and tenant to whom the provisions of this Act are applicable, and not being a decree for a sum of money exceeding Rs. 500, shall be made within three years from the date of the decree, and every such application made after the period of limitation so prescribed shall be dismissed although limitation has not been pleaded.' That a decree for rent in a suit in which the parties are bound by the provisions of the Bengal Tenancy Act, 1885, is a decree made under that Act was laid down by Petheram, C.J., and Beverley, J., in Baikanta Nath Mittra v. Aughore Nath Bose 21 C. 387 and has, so far as I know, never been doubted, save in the case, which is not the case here, of a co-sharer suing before the Act was amended in 1907. The provisions of the Act are admittedly applicable to the parties before us. Therefore, the Article applies; for the language is plain and refers to all decrees for rent in suits brought by landlords against tenants as such where the parties are bound by the provisions of the Tenancy Act of 1885, and not by those of, for example, the Transfer of Property Act of 1882. This is in consonance with the views expressed by Mookerjee and Vincent, JJ., in Thakomoni Dasi v. Mohendra Nath Dey Sarkar 10 C.L.J. 463; 3 Ind. Cas. 389 which I am disposed to follow rather than the later ruling of Brett and Sharf-ud-din, JJ., in K.B. Dutt v. Gostha Behary 16 C.L.J. 379; 16 C.W.N. 1006; 17 Ind. Cas. 207.

3. But the next and remaining contention is that the defendant, by consenting to a decree which expressly provided for a payment after the expiration of three years from its date, impliedly agreed to waive the special rule of three years' limitation and submit to a simple money decree and the ordinary rule of limitation. This at once raises the question whether the parties to a suit can contract themselves out of the law of limitation and extend the period prescribed thereby. I am of opinion that the reply to this question must be in the negative.

4. The principle (on which the appellants rely) that any one may renounce the benefit of a right introduced in his own favour, quilibet potest renunciare jure pro se introducto, is essentially restricted to legal provisions intended for the benefit of individuals, and does not apply to rules of law based, as are statutes of limitation, on public policy and general consideration. Nor--See Broom's Legal Maxims, Edition 8, at page 551--does the maxim seem to be applicable where an express statutory direction enjoins compliance with certain conditions. Therefore, in Kristo Komal Singh v. Huree Sirdar 13 W.R. (F.B.) 44 a Full Bench of this Court held that the fact of a decree-holder agreeing, as in this case, to accept payment of his decree by instalments and binding himself not to issue execution within a certain time, did not affect the question of limitation. 'If' observed Peacock, C.J., 'a man having a cause of action against another should say to that person, 'I will not sue you for 20 years,' he would not acquire a right to sue after the period of limitation fixed by law.' Again in Lalla Ram Sahoy v. Dodraj Matho 20 W.R. 395; Phear and Morris, JJ., united in expressing a doubt whether in any case parties could by consent free themselves from or remove their case out of the Statute of limitations. And, similarly, Prinsep and Maclean, JJ., in Noban Nusya v. Dhon Mahomed 5 C. 820; 6 C.L.R. 136 held that no conduct of the parties could in any way affect the period of limitation, within which an agreement could have been registered under the Indian Registration Act, 1877.

5. The result is that I would dismiss this appeal.


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